The Gauhati High Court’s verdict declaring the Central Bureau of Investigation (CBI) an illegal entity has surprised many for its far-reaching implications on all cases being investigated by the agency.
But from legal point of view, this landmark judgment is not a complicated one. In
fact, it is mainly based on interpretation of Article 21 of the Constitution that guarantees fundamental right to life and liberty to everybody, including foreigners.

“No person shall be deprived of his life or personal liberty except according to procedure established by law,” it says.

From the bare reading of the provision, it is clear that any state action that has any negative implications for people’s right to life or personal liberty has to have legal backing. The CBI while probing a case arrests accused persons, conducts searches and seizures, thereby, depriving them of their personal liberty. If an accused is convicted of murder charge, he/she can potentially be sent to the gallows.

Article 21 mandates that any such action has to be under a procedure established by law. Further, the Supreme Court has in various judgments ruled that the said procedure has to be due procedure.

But the Gauhati HC found that the CBI was not established by any law. Rather, it was set up by a home ministry resolution dated April 1, 1963, which the HC said was not even a proper executive order as it was not a cabinet decision, nor was it signed by the President. The HC held that the Centre’s action in issuing the resolution for setting up the CBI had been neither sanctioned by a law nor had it been taken in valid exercise of its executive powers, and therefore, hit by Article 21.